An en banc panel of the
Ninth U.S. Circuit Court of Appeals yesterday granted Arizona death row inmate
Robert Charles Comer’s request that his federal habeas corpus proceedings be
dismissed.

Clearing the way for
Comer’s execution, the court in a per curiam opinion rejected his lawyers’
argument that his decision to waive further proceedings was involuntary, due to
prison deprivations and harsh prison conditions.

The decision replaces a
Sept. 13 opinion by a three-judge panel, which agreed with U.S District Judge
Roslyn O. Silver’s finding that Comer was competent to waive legal review of
his conviction, but found that the circumstances of his sentencing violated due
process.

Writing for the court in
the now-withdrawn opinion, Senior Judge Warren Ferguson said Comer’s death
sentence was invalid because it was imposed while the defendant was nearly
naked, bleeding, shackled, and exhausted.

Comer was sentenced to
death in Arizona in state court after being convicted on charges of first
degree murder, armed robbery, kidnapping, aggravated assault, sexual assault,
and sexual abuse. The charges stemmed from acts he committed against three
campers at a campground in Apache Lake, Ariz. in February 1987.

Comer waived his
presence at his 1988 trial, which lasted seven days and resulted in a jury
finding him guilty on all counts. He also waived his presence at the sentencing
hearing, where the parties submitted evidence and argument as to whether Comer
should be sentenced to death or to life in prison.

At the conclusion of the
hearing, Arizona law required that Comer be present when his sentence was
pronounced. The inmate refused to attend the pronouncement, however,
barricading his cell door with a mattress and threatening jail staff with a
10-inch shank. Jail correctional officers sprayed Comer with water from a fire
hose with a 150-pound water pressure capacity in order to disarm him and
extract him from his cell.

After being further
resisted, the officers ultimately disarmed Comer and brought him to the sentencing
courtroom shackled to a wheelchair and nearly naked, covered only by a blanket
that was draped over his lap. His body bore visible abrasions and his head,
bleeding from a wound, was drooped toward his shoulder.

The trial judge asked a
prison psychiatrist whether Comer was conscious and aware, and the doctor
opined that he was. The judge told Comer Arizona law required him to appear and
engaged in a dialogue with Comer regarding his custody and sentence.

After Comer responded to
various questions and said he had nothing he wished to say before the
pronouncement of his sentence, the judge sentenced him to death on the murder
charge and to aggravated, consecutive terms of imprisonment for the other
offenses.

The Arizona Supreme
Court affirmed the convictions and sentence and later denied review of his
state court petition for post-conviction relief.

Comer filed a federal
petition for writ of habeas corpus with the U.S. District Court of Arizona,
which in 1997 ultimately denied him relief. After filing an appeal in the Ninth
Circuit, Comer changed his mind and wrote letters to the Arizona state attorney
general stating he no longer wanted his appeal to be heard, and expressing his
desire to die.

The Ninth Circuit
delayed oral argument on the merits of Comer’s petition and remanded for Silver
to determine whether Comer was competent to waive further proceedings and had
chosen to do so voluntarily.

In reaching the
conclusion that the inmate had properly waived his appeal, Silver considered
the opinion of an independent psychiatric expert who interviewed Comer for
numerous hours and toured the prison. In his district court testimony, Comer
agreed with the doctor’s opinion that prison conditions were not the most
significant factor motivating his decision to waive further proceedings.

The Ninth Circuit’s
Sept. 13 decision did not dispute the findings Silver detailed in her 90-page
opinion, but denied Comer’s motion to dismiss based on what Ferguson—joined by
Judge Harry Pregerson—described as a “prejudicial and dehumanizing” sentencing
hearing. Judge Pamela Ann Rymer had partially dissented, asserting the panel
had no authority to reach the merits of Comer’s petition and should only have
decided the competency and voluntariness issues.

The en banc panel yesterday
echoed Rymer’s position:

“As there is no dispute
regarding Comer’s competency, the District Court did not err in accepting
Comer’s testimony that prison conditions are not the major factor in his
decision to waive further proceedings nor are they so harsh as to force him to
abandon a natural desire to live,” the majority held.

Judge Richard A. Paez
concurred separately “to emphasize that, as part and parcel of the evaluation
of whether a petitioner’s waiver is knowing and voluntary, the district court
must ensure that the petitioner has an understanding of the viability of his
legal claims, particularly if they have some likelihood of success.”

In a dissent book-ended
with a photo of Comer at the pronouncement of his sentence, Pregerson quoted
the whole of Ferguson’s Sept. 13 majority opinion, reiterated its reasoning,
and concluded tersely:

“Comer wants to die.
Arizona wants to execute him. There is little question that this will happen.
Judge Ferguson’s opinion only requires that the sentence of death be pronounced
to an understanding human, not to a discarded piece of flesh.”

Tucson, Ariz. attorney
Julie S. Hall told the MetNews yesterday that counsel were under a court order
not to speak to the media about the case.

In addition to Hall,
Comer was represented on appeal by Denise I. Young, and Phoenix-based special
counsel Michael D. Kimerer and Holly R. Gieszl.

Assistant Attorney
General John Pressley Todd of Phoenix, represented the government.